Date of filing:- 12/12/2017.

Date of Order:-18/03/2021.

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

B  A  R  G  A  R  H

 Consumer Complaint No. 63 of 2017

            Bhupendra Patel S/o Mohanbhai Patel, aged about 40(forty) years, R/o and Po. Attabira, Ps/Tahasil. Attabira, Dist. Bargarh                   .....                 .....       .....         Complainant.

• V e r s u s -

1. The Senior Branch Manager, The Oriental Insurance Company Ltd., Bargarh Branch Office, Bargarh, At- Canal Avenue, Bargarh, Po/Ps/Tahasil/Dist. Bargarh-768028.
2. The Chief Regional Manager, the Oriental Insurance Company Ltd., Alok Bharati Tower, Sahid Nagar, Bhubaneswar-751007.
3. Mahindra and Mahindra Financial Service Ltd., Sabat Complex Back side of Tata Nagar Service  station, Ainthapali, Sambalpur, Odisha.

                      .....         .....       .....       Opposite Parties.

Counsel for the Parties:-

For the Complainant                            :- Sri M.K.Satapathy, Advocate with associate.

For the Opposite Party No.1(one)       :- Sri P.K. Mahapatra, Advocate with associate.

and Opposite Party No.2(two)

For the Opposite Party No.3(three)     :- Sri A.K.Sahoo, Advocate with associate.

                                                      -: P  R  E  S  E  N  T :-

Sri Krishna Prasad Mishra       .....       .....       .....       .....       .....       P r e s i d e n t.

Ajanta Subhadarsinee             .....        .....       .....       .....       .....       M e m b e r (W).

Dt.18/03/2021.                                 -: J   U  D   G  E  M  E  N  T:-

Presented by Sri Krishna Prasad Mishra, President:-

            Brief Facts of the case;-

            In pursuance to the Provision U/s 12 of the Consumer Protection Act 1986 the Complainant has preferred to file the case against the Opposite Parties pertaining to the allegation of deficiencies of rendering service to him as envisaged hereunder.

            The case of the complainant is that he has purchased a Mahindra & Mahindra Truxo 31T truck vide Registration No. OD-15C-9099, Engine No-BE142ZJ0369, chessis No.MA1PFALBCE6K 48829 and was plying the same and in the process has insured his said Vehicle with Opposite Party No.1(one) vide his policy No.345601/31/2016/5971 by paying the requisite amount of Premium, And while the said vehicle was plying from Bargarh to Ruchida near Narangpur met with an accident on Dt.28.12.2016 due to sudden appearance of a cow for which the driver lost control on the vehicle and as such capsized on the road side, so the matter was reported before the Ambobhana Police station vide S.D.Entry No.07 Dt.30.12.2016.

            Consequent upon the said accident the vehicle got completely damaged requiring a total repair for which he sustained a heavy financial loss, thus the Complainant claimed for the insurance amount before the Opposite Party No.1(one) with all relevant documents but the same was not settled by the Opposite Party No.1(one) even if their surveyor has assessed and reported the matter before the Opposite Party, which as per him amounts to deficiencies of service as a result of which the Complainant sustained financial, mental, and physical harassment thus has filed the case claiming an amount of Rs.2,50,000/-(Rupees two lakh fifty thousand)only towards his such sufferings along with insurance amount, and in substantiating his case has relied on the following documents:-

1. Xerox copy of R.C.Book of truck bearing Regd No. OD-15-C-9099 (one sheet)
2. S.D. Entry No. 07 Dt.30/12/2013 of Ambhabhona P.S.(Xerox copy)
3. Xerox copy of loan Statement details (Four sheets)
4. Office copy of Pleader Notice Dt.04/09/2017 (three sheets)
5. Postal receipts showing service of notice (two sheets)
6. Xerox copy of Policy bearing No.5961(two sheets)

            Having gone through the Complaint Petition, it’s accompanied documents and on hearing the learned counsel, the case was admitted and Notice was served on the Opposite Party No.1(one) & No.2(two) initially and in response both of them appeared and filed their version through their Advocate but subsequently thereafter at the time of final hearing of the case the Opposite Party No.3(three) entered in to appearance by being added as a necessary party on the strength of an application under Order 1 rule 10 C.P.C. filed by him and the same being allowed by the Honorable Forum, and also filed his version through his Advocate.

            The sum and substances of the version of the Opposite Party No.1(one) & No.2(two) is that the Complaint petition is not maintainable before the Forum as because the vehicle in question purchased by the Complainant was being used for the commercial purpose to earn profit out of it, further have alleged to have been concealed the facts before the Forum with regard to the same purchase being financed by the Opposite Party No.3(three), and also due to non-mentioning the claim amount has challenged the maintainabilty of the case, beside that also have claimed not to have deficient in rendering service to the Complainant, as immediately after getting information they have referred the matter to the Authority concerned and the matter was also taken up at an early manner & have deputed their legal surveyor to assess the loss caused to the said vehicle and after getting all the relevant scrutiny of the case have settled the claim of the Complainant for an amount of Rs.13,23,750/-(Rupees thirteen lakh twenty three thousand seven hundred fifty)only on net salvage loss without R.C and Rs.12,97,500/-(Rupees twelve lakh ninety seven thousand five hundred)only on net salvage loss basis with R.C. and informed the Complainant and also the Opposite Party No.3(three) but none of them replied rather the Complainant denied for the amount of compensation of insurance amount with a reason that the case is pending before the present Forum. Further more has claimed the claim of the Complainant as illegal as the said vehicle as has been financed by the Opposite Party No.3(three) and as such the claim of the Complainant is not a legal one as such the financer is the first owner of the said vehicle also he has challenged the maintainability of the case as is involved with lot of question of facts and law, for which a vivid scrutiny of facts and Law needs to be considered which is not possible in a summary procedure in the present Forum and in such circumstances the case is not maintainable and liable to be dismissed.

            Further with regard to the version of the Opposite Party No.3(three), it has claimed the case of the Complainant as not maintainable before the Forum in view of the facts that the Complainant was financed by his concern with an amount of Rs.22,05,000/-(Rupees twenty two lakh five thousand)only to purchase the Vehicle in question and although he had agreed to pay an amount of Rs.60,800/-(Rupees sixty thousand eight hundred)only in 47(forty seven) installment against the said Loan amount but since he was a regular defaulter in the said repayment, an amount of Rs.22,24,534/-(Rupees twenty two lakh twenty four thousand five hundred)only is outstanding against him, his further averment is that the Complainant has also obtained another vehicle vide Regd No-OD-15-F-4599, Engine No. BAGZB1104, Chessis No.MA1PFAHBCG6848882 on finance by his concern and an amount of Rs.20,48,477/-(Rupees twenty lakh forty eight thousand four hundred seventy seven)only is due on him and also in furtherance to his averment has stated that the same vehicle in question was financed in the name of the father of the Complainant which is illegal to run the same by him, also has stated that he being the financer and the loan amount has not yet been repaid the Complainant is not entitled to any claim amount because during the subsistence of the outstanding loan amount the Opposite Party No.3(three), is the absolute owner of the vehicle as such the case is not maintainable against him and the same being devoid of merit is liable to be dismissed and also has prayed before the Forum to issue a direction to the Opposite Party No.1(one) & No.2(two) to deposit the total approved claim amount with 10 %(ten peercent) per annum interest in his account, And in support of his case the Opposite Party No.3(three) has relied on a voluminous amount of documents in xerox copy of the same and the Opposite Party No.1(one) and No.2(two) have relied on these following documents.

1. Xerox copies of Insurance Polocy bearing No. 345601/31/2016/5961 Dt.03/02/2016 (three sheets)
2. Xerox copy of claim intimation of Complainant Dt.30/12/2016 (one sheet)
3. Xerox copies of Motor Survey Report (Spot) of Er. S.M.Mohapatra Dt.10/02/2017 (two sheets)
4. Xerox copies of Motor Claim Form Dt.30/12/2016 (two sheets)
5. Xerox copies of Service Estimates Dt.11/01/2017 (four sheets)
6. Xerox copy of loss assessed arrived Dt.10/02/2017 (one sheet)
7. Xerox copies of S.D.Entry and affidavit of Complainant Dt.30/12/2016 and Dt.14/03/2017 (two sheets)
8. Xerox copies of letters of the O.P. Dt.04/02/2017 and Dt.14/02/2017 (two sheets)
9. Xerox copies of verification reports of documents of the vehicle submitted by Adv. J.P.Pandia Dt.20/02/2017 and Dt.03/03/2017 (thirteen sheets)
10. Xerox copies of verifiction and investigation reports submitted by Adv S.K.Panda Dt.10/03/2017 and Dt.16/10/2017 (Four sheets)
11. Xerox copy of Motor Survey Reort (Final) of S.S. Rayet Dt.141/02/2017 (Eight sheets)
12. Xerox copies of Office Note and Assessment seet of O.P. (Three sheets)
13. Xerox copies of letters of the OP Dt.15/03/2017 and Dt.16/03/2017 (two sheets)
14. Xerox copies of emils of O.P. Dt.20/03/2017 and 31/03/2017 (two sheets)
15. Xerox copy of letter of O.P. Dt.15/09/2017 (one sheet)
16. Xerox copies of letter of the O.P. With enclosures Dt.07/09/2017 (eleven sheets)
17. Xerox copy of letter of the O.P to M and M Financial Service with enclosures Dt.24/04/2018 (Five sheets)
18. Xerox copy of letter of the O.P. To Complainant with enclosurers Dt.12/04/2018 (three sheets)
19. Xerox copy of email of the O.P. Dt.09/03/2018 (one sheet)
20. Xerox copies of letter of the O.P. And representation of Complainant Dt.01/05/2018 (two sheets)

            Perused the pleadings of the parties, it’s accompanied documents and the written notes arguments filed by their respective concerned Advocates hearing the oral submission of the Parties we are of the view that the case rest on the following issues for adjudication and for better appreciation of the Case .

1. Whether the case is maintainable before the Forum ?
2. Whether there is any deficiencies of service on the part of the O.PPosite Parties ?
3. Whether the Complainant is entitled to any relief as has been sought for by him ?

            Firstly while the Issue No.1(one) is taken up for consideration, with much care we scrutinized the materials available in the record and in the process it came to our Notice that the complainant has insured his vehicle with the Opposite Party No.1(one) & No.2(two) by paying the requisite amount of premium to insure his vehicle and also it is an admitted facts that the same vehicle has met an accident and on his claim before the Opposite Party No.1(one) & No.2(two) they have taken up the matter and have deputed their authorized surveyor to assess the loss and has also offered the amount assessed by the surveyor to which the Complainant has not accepted with an objection that by the time the offer of the insurance amount was made by then the case was pending before the Forum, further more we found that the Opposite Parties have claimed the present case filed by the Complainant is not maintainable before the Forum in view of the pleas that the vehicle has been purchased by the Complainant for commercial purpose, but to our observation the Opposite Parties have not filed any documents or any evidence to that effect on the other hand it is found that the same vehicle has been purchased by the Complainant by incurring a loan from the Opposite Party No.3(three) and have been claiming to have obtained the same for earning his livellyhood, and as has insured his said vehicle by paying the required amount of premium and due to the accident he has failed to repay his loan amount in time ,from where we can safely deduct that the Complainant is a consumer and as such the issue is answered in assertive to the case of the Complainant.

            Secondly with regard to the Issue No.2(two), to our close observation in paragraph No.10(ten0 & sub-para No.2(two) of the Opposite Party it is admitted therein that the Complainant has filed the claim with them on Dt.30.12.2016 and the estimate of repair was submitted by him on Dt.20.01.2017 and after that the process of the settlement of claim was followed by them and after completion of all formalities thereafter has intimated the Complainant on Dt.12.04.2018 after 14(fourteen) months of the intimation of claim made by the Complainant which it’self speakes of the negligent manner of dealing with the claim of the Complainant because of the fact that the office of the Opposite Parties No.1(one) & No.2(two) is a big organization having all sorts of facilities, so had they been careful with their customer at an early as they deal with, when they persue for insuring the vehicle then the Complainant might not have faced the financial loss and mental sufferings which in our view is nothing but an act of deficiencies of service on their part, and since we did not find any ambiguity in the case we did not feel it necessary to go in to the references made by the Opposite Parties as such our consensus view is expressed in favor of the Complainant.

            Thirdly with regard to the issues as to whether the Complainant is entitled to any relief , in this context it came to our Notice that the Complainant has purchased the vehicle being financed by the Opposite Party No.3(three), and due to the said Accident the Complainant has failed to repay the loan amount in time resulting to which the same has been claimed by the Opposite Party No.3(three) which have been accumulated with interest thereon and raised to an amount of Rs.22,24,534/-(Rupees twenty two lakh twenty four thousand five hundred thirty four) till Dt.21.11.2019 to which we did not find any counter objection from the side of the Complainant and also it is pertinent to mention here that the Complainant has not added the Opposite Party No.3(three) at the early stage of filing of the case for which the Opposite Party No.3(three) was added subsequently on the application made by him at a very belated stage of the case however since there is no explanation from the side of the Complainant with regard to his loan status it creats a cloud of doubt in the mind of the Honorable Forum, in view of such circumstances, the Complainant has to furnish the No Due Certificate issued by the Opposite Party No.3(three) before the Opposite Party No.1(one) & No.2(two), after that only he would be entitled to his claim amount, accordingly our Order follows.

                                                            O  R  D  E  R.

            Hence the Complainant is directed to submit the No Due Certificate by duely obtaining the same from the Opposite Party No.3(three) within thirty days of receipt of this order before the Opposite Party No.1(one) & No. 2(two), and in that case the Opposite Party No.1(one) & No.2(two) are directed to pay him the claim amount of Rs.13,97,500/-(Rupees thirteen lakh ninety seven thousand five hundred)only on total loss basis with an interest @ 6% (six percent)  per annum from the date of filing the case till the receipt of the order and also further directed to pay an amount of Rs.50,000/-(Rupees fifty thousand)only to the Complainant towards the sufferings mentally, financially undergone by him in default of which the total amount would carry further interest @ 9 % (nine percent) per annum till the actual realization of the total amount by the Complainant .

            The Order would be carried out by the parties within thirty days of the receipt of the order .

            Accordingly the Order is pronounced in the open Forum and the same is disposed off to-day i.e. on Dt.18/03/2021.

                                                                                                        Typed to my dictation

                                                                                                         and corrected by me.

                                I agree,                                                        ( Sri Krishna Prasad Mishra)

                                                                                                               P r e s i d e n t.           

                   ( Ajanta Subhadarsinee)

                          M e m b e r (W).

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